Saturday, December 23, 2006

Ogres Are Like Onsions

Ian Ayres

SHREK: Ogres are like onions.

DONKEY: [Sniffs] They stink?

SHREK: Yes. No!

DONKEY: They make you cry?


DONKEY: You leave them out in the sun, they get all brown, start sprouting' little white hairs.

SHREK: No! Layers! Onions have layers!

I overhead my kids playacting these lines and they seemed a perfect example of a central mistake in using metaphors. The author’s intended meaning is often not the meaning taken by the audience. Every metaphor has maniforld meanings. Every metaphor "hides" part of its meaning. My father-in-law, Theodore L. Brown, taught me this in his excellent book, Making Truth: Metaphor in Science.

When you tell a friend: “This article about city corruption is dynamite.” You might only intend to suggest that it is interesting. But the metaphor, like dynamite, might explode in ways that injurer the author.

A hard, but useful, lesson is to pause and consider unintended meanings of metaphors before you trot them out.

I still fall prey to this problem. I remember presenting to my colleagues the case for a truly great appointments candidate late one Spring. I concluded my presentation by saying that the recommendation of the appointments committee put me in mind of the “Wedding at Cana”. I had intended this to bring to their minds that the appointments committee had saved the best for last. But some of my colleagues pointed out that I might have been implying that this was the committee’s first miracle, or even worse that this process had somehow converting the candidate’s scholarship from water into wine.

Friday, December 22, 2006

The Anti-Torture Memos


The Anti-Torture Memos
Arranged by topic

We've previously compiled a running list of all posts related to civil liberties, the War on Terror, and presidential power, listed by author.

By popular demand, here is a list of the essays grouped by topic. We've eliminated postings that are very short or that mostly quote newspaper articles. What follows is a compendium of substantive analyses on some of the key issues of the War on Terror by the authors here at Balkinization.

The Anti-Torture Memos: Balkinization Posts on Civil Liberties, the War on Terror and Presidential Power

Part I-- Civil Liberties

Part II-- Presidential Power and Constitutional Structure

Part III-- Torture and the "Torture Memos"

Part IV– The NSA Controversy and Government Surveillance

Part V-- Hamdan

Part VI-- The Military Commissions Act of 2006

Miscellaneous Posts

Posts by Guest Bloggers

Part I-- Civil Liberties

(general essays on civil liberties)

1. Jack M. Balkin, Using Our Fears to Justify A Power Grab (Los Angeles Times, November 29th, 2001)

2. Jack M. Balkin, Who's Next? (Hartford Courant, June 20th, 2002)

3. Jack M. Balkin, In Giving Up Our Rights, We'd Lose the War (New Orleans Times-Picayune, September 11th, 2002)

4. Jack M. Balkin, The Truth About Our Institutions (The Responsive Community, October 2002)

5. Jack M. Balkin, Justice Department: Constitution? We Don't Need Your Stinking Constitution (June 3, 2004)

6. Jack M. Balkin, An Admission of Failure (Sept. 23, 2004)

7. Jack M. Balkin, Attorney General Denounces Rule of Law As Aid To Terrorism (Nov. 13, 2004)

8. Brian Tamanaha, Undisclosed Prisons, Detention Without Charges, and Now Secret Laws: the Bush Adminstration's Latest Act of Contempt for the Rule of Law (Dec. 12, 2005)

9. Jack M. Balkin, To Our Great Shame (Jan. 6, 2005)

10. Brian Tamanaha, U.S. Loses Critical Battle in GWOT (Mar. 14, 2006)

11. Jack M. Balkin, Detention for Dangerous Speech? (June 25, 2006)

12. Sandy Levinson, The 1% Solution and the Marginalization of Civil Liberties (Aug. 20, 2006)

13. Jack M. Balkin, September 11 and American Politics, Five Years Later (Sept. 12, 2006)

14. Jack M. Balkin, The Great Debate Over the Rule of Law -- and Civic Courage (Sept. 14, 2006)

15. Sandy Levinson, Article 48 and the U.S. Constitution (Sept. 14, 2006)

16. Sandy Levinson, Thucydides Weighs In (Sept. 25, 2006)

17. Mark Graber, More Advice from Classical Greece (Sept. 25, 2006)

18. Stephen Griffin, . . . And From the Roman Republic (Spet. 25, 2006)

19. Brian Tamanaha, Comparing the U.S. and the European Responses to the Threat of Terrorism (Oct. 2, 2006)

20. Mark Graber, A Modest Proposal (Oct. 11, 2006)

21. Jack Balkin, Bye Bye, First Amendment, Hello Prior Restraints (December 14, 2006)

22. Marty Lederman, A First Amendment Right to Hold Classified Documents? (December 14, 2006)

Part II-- Presidential Power and Constitutional Structure

(including the Padilla case and presidential signing statements)

1. 16. Jack M. Balkin, Above the Law? (June 9, 2004)

2. 29. Jack M. Balkin, The Election and the Constitution (June 22, 2004)

3. 38. Jack M. Balkin, More on the detention cases (June 28, 2004)

4. Jack M. Balkin, The Next Battle: Transparency (July 1, 2004)

5. Jack M. Balkin, Not Your Founding Fathers' Checks and Balances (July 13, 2004)

6. Jack M. Balkin, The Constitutionality of Military Tribunals (July 16, 2005)

7. Brian Tamanaha, A Brainteaser About "Acting Above the Law" (Aug. 1, 2005)

8. Marty Lederman, Padilla (Sept. 9, 2005)

9. Marty Lederman, Further Thoughts on Preventing Padilla from "Returning" to the Afghan Battlefield (Sept. 10, 2005)

10. Jack M. Balkin, The Constitutional Trifecta: A Problem of Executive Oversight (Nov. 2, 2005)

11. Jack M. Balkin, Padilla Indicted (Nov. 22, 2005)

12. 2. Sandy Levinson, Judge Alito and Executive Power (Dec. 29, 2005)

13. Jack M. Balkin, Our Legal and Political Culture (Dec. 31, 2005)

14. Sandy Levinson, The Alito Nomination: The Plot Thickens (Jan. 2, 2006)

15. Marty Lederman, I Suppose That Depends On What the Definition of "the Law of the Land" Is (Jan. 5, 2006)

16. 4. Sandy Levinson, Is James Madison Completely Irrelevant? (Jan. 8, 2006)

17. David Luban, Mansfield on Bush: Machiavelli Made Me Do It (Jan. 11, 2006)

18. Jack M. Balkin, Who's Afraid of Presidential Signing Statements? (Jan. 17, 2006)

19. 87. Jack M. Balkin, Congressional Oversight, Party Loyalty, and Separation of Powers (Feb. 10, 2006)

20. Jack M. Balkin, DOJ Memo Defends Cheney Shooting (Feb. 14, 2006)

21. Brian Tamanaha, Soliciting Nominations for the Cox-Richardson-Ruckleshaus Award (Mar. 15, 2006)

22. Sandy Levinson, Iran-Contra and our Present Constitutional Discontents (Mar. 14, 2006)

23. Jack M. Balkin, Reductio Ad Dictatorem (Apr. 7, 2006)

24. Jack M. Balkin, President Bush: "It's Not Law Unless I Say So (And Even If I Said So)" (May 1, 2006)

25. Jack M. Balkin, Bush is just another word for nothing left to lose (May 12, 2006)

26. Sandy Levinson, Malfeasance and Misfeasance (May 12, 2006)

27. Sandy Levinson, Paying the Price for Defending Clinton (May 13, 2006)

28. Sandy Levinson, The whiff of fascism in the air (May 13, 2006)

29. Sandy Levinson, West Wing and the Constitution (finale) (May 14, 2006)

30. Jack M. Balkin, A Corrupt Congress is Shocked to Discover a Lawless Executive (May 25, 2006)

31. Jack M. Balkin, Secret DOJ Memo Explains Why the Flag Burning Amendment is Unnecessary (June 8, 2006)

32. Sandy Levinson, Is Congress Autonomous? (July 2, 2006)

33. Sandy Levinson, "Creativity," Candor, and Lawyering (July 3, 2006)

34. Marty Lederman, Chalk on the Spikes: What is the Proper Role of Executive Branch Lawyers, Anyway? (July 4, 2006)

35. Jack M. Balkin, Tales from the Unitary Executive, Part II (July 18, 2006)

36. Jack M. Balkin, What the Bush Veto Means (July 19, 2006)

37. Marty Lederman, ABA Task Force Report on Presidential Signing Statements (July 23, 2006)

38. Mark Graber, The Politics of Signing Statements (July 25, 2006)

39. Marty Lederman, The Problem Isn't Signing Statements (July 30, 2006)

40. Marty Lederman, Untangling the Debate on Signing Statements [written with seven former OLC colleagues and posted on the Georgetown Law site] (July 31, 2006)

41. Jack M. Balkin, Partisan Entrenchment in the Civil Rights Division (Aug. 2, 2006)

42. Stephen Griffin, The Constitution Outside the Courts: Apotheosis or Gotterdammerung? (Aug. 2, 2006)

43. Marty Lederman, More on the ABA Signing-Statements Resolutions (Aug. 5, 2006)

44. Sandy Levinson, Better a Criminal Than an Overreaching Incompetent?(Aug. 6, 2006)

45. Stephen Griffin, The ABA Report and Constitutional Change (Aug. 8, 2006)

46. Sandy Levinson, "Walls" Between the FBI and CIA (and Within the FBI) (Aug. 12, 2006)

47. Jack M. Balkin, How the Presidency Regained Its Balance, Indeed (Sept. 19, 2006)

48. Mark Graber, Sunday Morning Thoughts on Moderation (Oct. 1, 2006)

49. Sandy Levinson, On Language Proper to Our Situation (Oct. 1, 2006)

50. Sandy Levinson, The Fault is in Our Constitution (Oct. 3, 2006)

51. Marty Lederman, Shameless: The President's Constitutional Authority to Appoint Political Hacks to Run FEMA (Oct. 5, 2006)

52. Sandy Levinson, Abraham Lincoln as Myth and Symbol (Oct. 5, 2006)

53. Mark Graber, The Lincoln Trope (Oct. 6, 2006)

54. Marty Lederman, Three Senators Respond to the President's Assertion of an Appointments Clause Prerogative (Oct. 12, 2006)

55. David Luban, What Makes a War? (Nov. 26, 2006)

56. Scott Horton, A Question for December 7 (December 8, 2006)

57. Jack M. Balkin, A Vote of No Confidence for Presidents in the American System (December 7, 2006)

58. Jack M. Balkin, Presidential Caesarism: The Executive versus the Bureaucracy (December 8, 2006)

59. Marty Lederman, How Congress Might send a "Message" to the President About Iraq (December 10, 2006)

Part III-- Torture and the "Torture Memos"

(including the McCain Amendment and the Detainee Treatment Act of 2005)

1. Jack M. Balkin, Reaping What You Sow (May 6, 2004)

2. Jack M. Balkin, Anything Goes (May 12, 2004)

3. Jack M. Balkin, Misleading the Supremes (May 14, 2004)

4. Jack M. Balkin, Arguments That Make You Ashamed to be a Lawyer (June 9, 2004)

5. Jack M. Balkin, Yoo: If you don't like our torture, vote us out of office (June 11, 2004)

6. Jack M. Balkin, Moral Clarity (June 13, 2004)

7. Jack M. Balkin, It's Official: Bush Administration Received Legal Advice Permitting Torture (June 14, 2004)

8. Jack M. Balkin, Moral Clarity, Part 2 (June 21, 2004)

9. Jack M. Balkin, White House Backs Away from Torture Memo (June 23, 2004)

10. Sandy Levinson, The Administration backtracks on torture (June 23, 2004)

11. Jack M. Balkin, Imperial Presidency Alive and Well (June 23, 2004)

12. Jack M. Balkin, Legal Scholars Assess the Torture Memos (June 26, 2004)

13. Jack M. Balkin, Vermeule and Posner Defend the Torture Memo (July 13, 2004)

14. Jack M. Balkin, Youngstown and the President's Power to Torture (July 16, 2004)

15. Jack M. Balkin, Ghost Detainees (Sept. 10, 2004)

16. Marty Lederman, Principles to Guide the Office of Legal Counsel (with 18 other former OLC attorneys) (Dec. 21, 2004)

17. Marty Lederman, Understanding the OLC Torture Memos (Part I) (Jan. 8, 2005)

18. Marty Lederman, Understanding the OLC Torture Memos (Part II) (Jan. 8, 2005)

19. Marty Lederman, Understanding the OLC Torture Memos (Part III) (Jan. 8, 2005)

20. Marty Lederman, Understanding the OLC Torture Memos (Coda) (Jan. 8, 2005)

21. Marty Lederman, Heather MacDonald's Dubious Counter-"Narrative" on Torture (Jan. 11, 2005)

22. Marty Lederman, Administration Confirms Its View that CIA May Engage in "Cruel, Inhuman and Degrading" Treatment (Jan. 12, 2005)

23. Marty Lederman, The White House Dissembles on Torture and the CIA's Authority to Engage in Cruel, Inhuman and Degrading Treatment (Jan. 14, 2005)

24. Marty Lederman, Judge Gonzales' Senate Responses (Jan. 18, 2005)

25. Marty Lederman, Heather Mac Donald's "Few Bad Apples" Theory of Abuse (Jan. 23, 2005)

26. Marty Lederman, More Responses from Judge Gonzales (Jan. 25, 2005)

27. Marty Lederman, So, Does the President Think That the CIA Should be Forbidden from Engaging in Cruel, Inhuman and Degarding Treatment? (Jan. 27, 2005)

28. Marty Lederman, Defining Torture Down (Mar. 17, 2005)

29. Marty Lederman, Triple-Threat to Our Security: International Fora, Judicial Processes and Terrorism (Mar. 26, 2005)

30. Marty Lederman, Waldron/Yoo Debate on Torture (Apr. 26, 2005)

31. Marty Lederman, Has Congress Prohibited "Torture Light"? (May 11, 2005)

32. Jack M. Balkin, Closing down Gitmo (June 9, 2005)

33. Marty Lederman, Defining "Humanely" Down, Part II (June 13, 2005)

34. Marty Lederman, GTMO: Where Was the Law? Whither the UCMJ? (June 14, 2005)

35. Jack M. Balkin, President Bush Lashes Out at His Administration's Conduct at Gitmo and Secret CIA Detention Centers (July 1, 2005)

36. Marty Lederman, Defining "Humane" Down, Part III -- The Schmidt Report (July 14, 2005)

37. Marty Lederman, The Importance of Geneva Common Article 3 (July 17, 2005)

38. Marty Lederman, The Graham Hearing on Detainees -- Progress on the Congressional Front (July 18, 2005)

39. Marty Lederman, President Tells Congress to Take a Hike on Detention and Interrogation (July 22, 2005)

40. Marty Lederman, The Heroes of the Pentagon's Interrogation Scandal -- Finally, the JAG Memos (July 23, 2005)

41. Marty Lederman, The JAG Memos on Military Interrogation and OLC's Legal Analysis (July 27, 2005)

42. Marty Lederman, Horrifying. Shameful. (Aug. 3, 2005)

43. Marty Lederman, The Mowhoush Murder, Geneva, the Scorpions, and Military "Special Forces" (Aug. 3, 2005)

44. Marty Lederman, Rendition to Torture (Aug. 6, 2005)

45. Marty Lederman, "We Don't Torture." "We Abide By Our Treaty Obligations." "We Treat Detainees Humanely." (Repeat as Needed.) (Sept. 21, 2005)

46. Marty Lederman, Silver Linings (or, the Strange But True Fate of the Second (or was it the Third?) OLC Torture Memo) (Sept. 21, 2005)

47. Scott Horton, Shirking Responsibility (Sept. 25, 2005)

48. Marty Lederman, Captain Fishback's Letter to Senator McCain (Sept. 28, 2005)

49. Scott Horton, The Judge as POW (Sept. 28, 2005)

50. Scott Horton, What the England Courtmartial Doesn't Tell Us (Oct. 1, 2005)

51. Marty Lederman, Halftime Score: John McCain 90, Dick Cheney 9 (Oct. 5, 2005)

52. Scott Horton, Sexual Perversion in Rumsfeld's Pentagon (Oct. 9, 2005)

53. Marty Lederman, Beware the "Augmented" McCain Amendment! (Oct. 15, 2005)

54. Marty Lederman, Battle Royale at the Pentagon: David Addington v. Common Article 3 (Nov. 1, 2005)

55. Marty Lederman, The CIA's "Black Sites": Beyond the Rule of Law? (Nov. 1, 2005)

56. Marty Lederman, Look on the Bright Side -- We May Be Torturing in Eastern European Detention Facilities, But Our Black Sites Aren't as Bad as the Gulag! (Nov. 7, 2005)

57. Scott Horton, The Return of Carl Schmitt (Nov. 7, 2005)

58. Scott Horton, Rumsfeld's 'Humane' Doesn't Cut It (Nov. 10, 2005)

59. Marty Lederman, Hamdan, Rasul, et al., Imperiled (Nov. 11, 2005)

60. Marty Lederman, No Need to Fret About Waterboarding: It's Merely a Psychological Ploy (Nov. 12, 2005)

61. Marty Lederman, Confusing Developments Senate-Side on GTMO Detention, Commissions and Habeas (Nov. 15, 2005)

62. Scott Horton, Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips? (Nov. 20, 2005)

63. Marty Lederman, CIA "Enhanced Interrogation Techniques" Revealed (Nov. 21, 2005)

64. Jack M. Balkin, Will The Threads Start To Unravel? (Nov. 24, 2005)

65. Jack M. Balkin, Luban and the Real Debate About Torture (Nov. 27, 2005)

66. Marty Lederman, Condi Rice's "No Torture" Pledge: Don't Believe the Hype! (Dec. 7, 2005)

67. Jack M. Balkin, One Reason Why Torture Might Not Work (Dec. 9, 2005)

68. Scott Horton, The Curious Word 'Honor' (Dec. 13, 2005)

69. Scott Horton, Torture By the Back Door (Dec. 15, 2005)

70. Jack M. Balkin, Why Evidence Obtained From Torture Should Never Be Admissible (Dec. 16, 2005)

71. Marty Lederman, The McCain Amendment -- The Good (Dec. 16, 2005)

72. Marty Lederman, The McCain Amendment -- The (Potentially) Bad (Dec. 16, 2005)

73. Marty Lederman, The McCain Amendment -- The Ugly (Dec. 16, 2005)

74. Marty Lederman, The McCain Amendment -- What Would the Law Be, Anyway? (Dec. 16, 2005)

75. Marty Lederman, The McCain and Graham/Levin/Kyl Amendments -- Here They Are (Dec. 24, 2005)

76. Marty Lederman, So Much for the President's Assent to the McCain Amendment (Jan. 2, 2006)

77. Marty Lederman, Senator McCain Lays Down a Marker (Jan. 4, 2006)

78. Marty Lederman, How the Pentagon Came to Adopt Criminal Abuse as Official Policy (Feb. 20, 2006)

79. Jack M. Balkin, Don't be Distracted by the Gay Porn (Feb. 24, 2006)

80. Marty Lederman, But Jack, Abuse is Not Mistreatment (Feb. 24, 2006)

81. David Luban, An Embarrassment of Riches (Mar. 4, 2006)

82. Marty Lederman, Does the Army Field Manual Authorize "Creative" Humiliation of Detainees? (Mar. 16, 2006)

83. Marty Lederman, So Brutal, Even the CIA Flinches (Mar. 18, 2006)

84. Marty Lederman, Army Confirms: Rumsfeld Authorized Criminal Conduct (Apr. 28, 2006)

85. David Luban, Sitting Here in Limbo: The Exonerated Detainees (May 6, 2006)

86. David Luban, An Asymmetrical Assault on Reality (June 12, 2006)

87. Jack M. Balkin, How Torture Works (June 20, 2006)

88. Marty Lederman, Why Close GTMO? (June 22, 2006)

89. Marty Lederman, Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It? -- and a Short Riff on the Haynes Nomination (July 11, 2006)

90. Marty Lederman, Airtight Logic (July 11, 2006)

91. Marty Lederman, Not-so-Common Article 3 (July 13, 2006)

92. Jack M. Balkin, CCR Report: Prisoner Mistreatment at Guantanamo (July 13, 2006)

93. Jack M. Balkin, An Alternative Set of Procedures (Sept. 7, 2006)

94. Brian Tamanaha, On Stalin's (Torturous) "Alternative Set of Procedures" (Sept. 11, 2006)

95. Stephen Griffin, Torture and the Ticking Time Bomb (Oct. 10, 2006)

96. Jack M. Balkin, A Dunk in the Water for Clarity (Oct. 28, 2006)

97. Marty Lederman, Yes, It's a No-Brainer: Waterboarding Is Torture (Oct. 28, 2006)

98. Jack M. Balkin, U.S. citizen alleges he was tortured in U.S. custody inside the U.S. (Nov. 1, 2006)

99. Jack M. Balkin, We could tell you how we torture people, but then we'd have to kill you (Nov. 4, 2006)

100. Marty Lederman, You Call It "Torture"; We Call It "Coming Into Possession of Classified Information" (Nov. 4, 2006)

101. Jack M. Balkin, Karpinski: Rumsfeld Approved Coercive Interrogation Methods (Nov. 25, 2006)

102. Jack M. Balkin, U.S. Government: You can't believe Padilla when he says we tortured him because he's crazy from all the things we did to him (December 14, 2006)

103. Marty Lederman, Murky's Law (December 16, 2006)

Part IV– The NSA Controversy and Government Surveillance

(Including the debate over amending FISA)

1. Jack M. Balkin, Domestic Spying (Dec. 16, 2005)

2. Jack M. Balkin, The Constitution: A Safe Haven for Terrorists (Dec. 19, 2005)

3. Marty Lederman, Which Is It, Mr. President? (Dec. 19, 2005)

4. Marty Lederman, Definition of "Audacity" (Dec. 19, 2005)

5. Jack M. Balkin, Governing Through Terrorism (Dec. 20, 2005)

6. Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)

7. Marty Lederman, Judge Posner and "Ad Hoc Initiatives" (i.e., Presidentially Sanctioned Felonies) (Dec. 21, 2005)

8. Marty Lederman, Why They Didn't Simply Go to the FISA Court -- Because That Court Will Not Approve Illegal Surveillance (Dec. 22, 2005)

9. Marty Lederman, "Inherent Authority" to Violate Federal Law? (Dec. 22, 2005)

10. Stephen Griffin, Why FISA is Important (Dec. 22, 2005)

11. Jack M. Balkin, Data Storage and the Fourth Amendment (Dec. 23, 2005)

12. Marty Lederman, If You're Going to Read Only One Thing About the NSA Spying Program (Dec. 25, 2005)

13. Marty Lederman, NSA Euphemism Watch, Part 2 (Dec. 28. 2005)

14. Jack M. Balkin, Prosecutorial Discretion (Dec. 30, 2005)

15. Marty Lederman, Prosecutorial Discretion, Continued -- A Special Counsel? (Dec. 31, 2005)

16. Marty Lederman, Analysis of the Legality of the Secret NSA Warrantless Electronic Surveillance Program (Jan. 9, 2006)

17. Marty Lederman, What Can Be Done About the NSA Dispute? (Jan. 20, 2006)

18. Jack M. Balkin, The NSA Program and the Rule of Law (Feb. 1, 2006)

19. Marty Lederman, Scholars' Reply to DOJ "White Paper" on NSA, FISA, the AUMF and Article II (Feb. 2, 2006)

20. Jack M. Balkin, Why the Administration is Stonewalling on Its Justifications for the NSA Program (Feb. 2, 2006)

21. Marty Lederman, Senator Roberts Declares FISA Unconstitutional (Feb. 3, 2006)

22. Jack M. Balkin, Shorter Attorney General Gonzales (Feb. 7, 2006)

23. Marty Lederman, Mother of Mercy, Is This the End of FISA?! (Feb. 26, 2006)

24. Marty Lederman, Gall (and Desperation): How Low Can Frist Stoop? (Mar. 4, 2006)

25. Marty Lederman, A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care (Mar. 9, 2006)

26. Jack M. Balkin, Strange Days (Mar. 16, 2006)

27. Marty Lederman, The Reward for Lawbreaking Act of 2006 (Mar. 17, 2006)

28. Jack M. Balkin, Bush Administration Claims Authority For Warrantless Physical Searches (Mar. 19, 2006)

29. Jack M. Balkin, The New Constitutional Order and the National Surveillance State (Mar. 23, 2006)

30. Marty Lederman, Kris Testimony on NSA Surveillance and Possible Amendments to FISA (Mar. 28, 2006)

31. Marty Lederman, The Schumer NSA Bill and the Feingold Censure Resolution (Mar. 31, 2006)

32. Marty Lederman, New York Times on the Schumer Bill (Apr. 6, 2006)

33. Jack M. Balkin, Tales from the Unitary Executive -- The NSA and Domestic Surveillance (May 11, 2006)

34. Marty Lederman, The (Il)legality of the NSA Phone-Records-Interception Program (May 11, 2006)

35. Marty Lederman, Further Thoughts on the Lawfulness of the Newly Disclosed NSA Program (May 11, 2006)

36. Marty Lederman, Where There's Smoke . . . There's Cheney and Addington (May 13, 2006)

37. Jack M. Balkin, FBI: We're Using National Security Letters to "Backtrack" Reporters' Calls (May 16, 2006)

38. Jack M. Balkin, The Twin Dangers of the National Surveillance State (May 17, 2006)

39. Marty Lederman, Michael Hayden and Article II (May 19, 2006)

40. Marty Lederman, The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA (May 22, 2006)

41. Marty Lederman, Ceballos and Public Speech: Response to Roosevelt (June 1, 2006)

42. Jack M. Balkin, Data Retention in the National Surveillance State (June 2, 2006)

43. Jack M. Balkin, I Could Tell You Why What I'm Doing Is Legal But Then I'd Have To Shoot You (June 12, 2006)

44. Jack M. Balkin, The Public/Private "Handshake" and the National Surveillance State (June 15, 2006)

45. Jack M. Balkin, The Administration That Cried Wolf (June 26, 2006)

46. Jack M. Balkin, Hamdan and the NSA Dispute (June 30, 2006)

47. Marty Lederman, Hamdan and the NSA Domestic Surveillance Program: What Next? (July 7, 3006)

48. Marty Lederman, Open Letter in Response to Cass Sunstein on the NSA and FISA (July 9, 2006)

49. Marty Lederman, Well, Now It's Clear: Hamdan's Just a Bump in the Road (July 11, 2006)

50. Jack M. Balkin, Bush Administration to Justice Stevens: Drop Dead (July 12, 2006)

51. Marty Lederman, The Specter Monstrosity (July 13, 2006)

52. Jack M. Balkin, Specter Gives Up the Game -- The Sham NSA Bill (July 14, 2006)

53. Jack M. Balkin, Breaking and Entering Under the Specter Bill (July 14, 2006)

54. Marty Lederman, The NSA, FISA and Hamdan: Response to DOJ from Scholars and Former Officials (July 14, 2006)

55. Marty Lederman, Has the Onion Infiltrated the Offices of Time Magazine? (July 15, 2006)

56. Marty Lederman, A Tale of Two Washington Posts (July 15, 2006)

57. Marty Lederman, New York Times Editorial Page Gets It, Too (Mostly) (July 15, 2006)

58. Marty Lederman, As If Hamdan Never Happened: Don't Give an Inch on Article II (July 19, 2006)

59. Marty Lederman, Note to Senator Specter -- A Youngstown Refresher (July 19, 2006)

60. Marty Lederman, Proof Positive That Arlen Specter Does Not Read Balkinization (July 23, 2006)

61. Jack M. Balkin, Total Information Awareness-- it's back (and never actually left) (July 24, 2006)

62. Jack M. Balkin, Secret Earmarks (July 24, 2006)

63. Jack M. Balkin, Stopping Terror Legally (Aug. 11, 2006)

64. Marty Lederman, Random Searches on New York City Subways (Aug. 14, 2006)

65. Jack M. Balkin, Stopping Terror Legally, Part II (Aug. 16, 2006)

66. Jack M. Balkin, Federal Court Strikes Down NSA Domestic Surveillance Program (Aug. 17, 2006)

67. Marty Lederman, Ah, Well, That Explains It (Aug. 18, 2006)

68. Jack M. Balkin, The Secret Advantages of Judge Taylor's Opinion in ACLU v. NSA (Aug. 18, 2006)

69. Marty Lederman, Why Should We be "Boxed In" by the Constitution and Laws of the United States? (Aug. 22, 2006)

Part V-- Hamdan

1. David Luban, Human Rights in the Balance: What's at Stake in Hamdan (Oct. 12, 2005)

2. Jack M. Balkin, The Hamdan Oral Argument (Mar. 28, 2006)

3. Jack M. Balkin, Hamdan Decided-- Geneva Conventions Not So "Quaint" After All (June 29, 2006)

4. Marty Lederman, Hamdan Summary -- And HUGE News (on SCOTUSblog) (June 29, 2006)

5. Jack M. Balkin, Hamdan as a Democracy-Forcing Decision (June 29, 2006)

6. Marty Lederman, Legislative Supremacy, The Laws of War, and the Geneva Holding (June 29, 2006)

7. Mark Graber, Hamdan As What We Make It (June 29, 2006)

8. Marty Lederman, Hamdan is a Big Deal Regardless of What Congress Does (June 30, 2006)

9. Mark Graber, Hamdan's Politics (July 1, 2006)

10. Marty Lederman, Truer Words Were Never Spoken (July 2, 2006)

11. Marty Lederman, Top Ten Myths About Hamdan, Geneva, and Interrogations (on Georgetown Law Faculty Blog) (July 5, 2006)

12. Jack M. Balkin, Out with the "New Paradigm," in with the Old? (July 11, 2006)

13. Marty Lederman, Two More Hamdan Myths (July 15, 2006)

14. Marty Lederman, Two (or Three) More Myths About Hamdan [on Georgetown Law site] (July 15, 2006)

Part VI-- The Military Commissions Act of 2006

(the legislative history and the aftermath)

1. Jack M. Balkin, Bush Administration to Congress: We're Not Budging on Military Tribunals (July 26, 2006)

2. Marty Lederman, The Bush Administration Draft Hamdan Response Bill (July 27, 2006)

3. Jack M. Balkin, And While You're at it, We'd Like Impunity from War Crimes Too, Please (July 28, 2006)

4. Marty Lederman, What's to Become of Common Article 3? (Aug. 2, 2006)

5. Marty Lederman, Why Bother with Military Commissions? (Aug. 4, 2006)

6. Marty Lederman, The CIA Cruelty Authorization Act of 2006 (Aug. 14, 2006)

7. Marty Lederman, Will the Geneva Conventions Be the First "Universally Accepted" Treaties? (Aug. 22, 2006)

8. Marty Lederman, Here's the Administration's Cruel Treatment and Torture Authorization Act (Sept. 6, 2006)

9. Marty Lederman, The CIA's "Alternative Set of Procedures": Calling Things by Their Right Names (Sept. 6, 2006)

10. Marty Lederman, Does Torture Save Lives? (Sept. 7, 2006)

11. Marty Lederman, (CIA) Business as Usual?: Would the Administration Bill Effectively "Overrule" Hamdan? (Sept. 8, 2006)

12. Jack M. Balkin, Draft of Warner-Graham Bill on Military Commissions (Sept. 8, 2006)

13. Jack M. Balkin, Third Draft of Warner-Graham Bill on Military Commissions (Sept. 11, 2006)

14. Marty Lederman, Will Congress Authorize Violations of the Geneva Conventions? (Sept. 13, 2006)

15. Marty Lederman, At Last, the Issue is Publicly Joined . . . and When All the Smoke has Cleared, the Central Question is Quite Simple (Sept. 15, 2006)

16. Jack M. Balkin, "Final" Version of the Warner-McCain-Graham Bill on Military Commissions (Sept. 15, 2006)

17. Marty Lederman, Getting with "The Program": Clarity Through Obfuscation (Sept. 16, 2005)

18. Jack M. Balkin, The Top Ten Reasons President Bush Wants to Limit the War Crimes Act and the Geneva Conventions(Sept. 16, 2006)

19. Marty Lederman, Even OLC is Unwilling to Say That That These Techniques Comply with Geneva (Sept. 16, 2006)

20. Jack M. Balkin, Specter Sees the Light on the Great Habeas Swindle (Sept. 19, 2006)

21. Marty Lederman, The Torture Chorus (Sept. 21, 2006)

22. Marty Lederman, Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva (Sept. 21, 2006)

23. Marty Lederman, Three of the Most Significant Problems with the "Compromise" (Sept. 22, 2006)

24. Sandy Levinson, Legal Realism 101 and the McCain Capitulation (Sept. 22, 2006)

23. Sandy Levinson, Is John McCain a Tragic Figure? (Sept. 22, 2006)

24. David Luban, The Burning Question (Sept. 22, 2006)

25. Jack M. Balkin, Text of Current Bush-Senate Compromise Bill (Sept. 22, 2006)

26. Marty Lederman, Clarification of What the War Crimes Amendment Would (Not) "Authorize" (Sept. 23, 2006)

27. Marty Lederman, Oh, Well, That Explains It (Sept. 23, 2006)

28. Sandy Levinson, On the Way to a Banana Republic (Sept. 23, 2006)

29. Sandy Levinson, Is a Filibuster Really Unthinkable? (Sept. 23, 2006)

30. Marty Lederman, Senator McCain's Understanding of His Own "Compromise" Legislation (Sept. 24, 2006)

31. Marty Lederman, It Gets Worse (Sept. 26, 2006)

32. Sandy Levinson, Further Tales from a Banana Republic (Sept. 26, 2006)

33. Marty Lederman, Hate to Rain on the Torture Parade . . . (Sept. 26, 2006)

34. Marty Lederman, Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely (Sept. 27, 2006)

35. Jack M. Balkin, Spineless Democrats Deserve to Lose (Sept. 27. 2006)

36. Marty Lederman, "Tyranny": "Our Generation's Version of the Alien and Sedition Acts" (Sept. 28, 2006)

37. David Luban, Civilized Is As Civilized Does (Sept. 28, 2006)

38. Jack M. Balkin, And What Did the Democrats Get for Selling Out? (Sept, 28, 2006)

39. Mark Graber, The Party of Torture (Sept. 28, 2006)

40. Jack M. Balkin, What Hamdan Hath Wrought (Sept. 29, 2006)

41. Does the Military Commissions Act Apply to Citizens? (Sept. 29, 2006)

42. Stephen Griffin, If Democrats Had Spine (or were Thinking like Republicans) (Sept. 30, 2006)

43. Sandy Levinson, Does Japan Offer the Better Analogy? (Oct. 2, 2006)

44. Jack M. Balkin, Has Congress Unconstitutionally Suspended the Writ of Habeas Corpus? (Oct. 3, 2006)

45. Jack M. Balkin, This Administration Can't Be Broken, Even with Waterboarding (Oct. 5, 2006)

46. Scott Horton, When Lawyers Are War Criminals (Oct. 8, 2006)

47. Marty Lederman, John Yoo on Court-Stripping (Oct. 19, 2006)

48. Jack M. Balkin, Parallel Tracks in the National Surveillance State (Oct. 23, 2006)

49. Jack M. Balkin, U.S. to Immigrants: You Have no Rights Which We Are Bound to Respect (Nov. 14, 2006)

Miscellaneous Posts

1. Jack M. Balkin, A Dreadful Act II (Los Angeles Times, February 13th, 2003)

2. Jack M. Balkin, No Blank Check For Bush (Hartford Courant, May 16th, 2004)

3. Jack M. Balkin, The Scandal of Abu Ghraib, One Year Later (Apr. 27, 2005)

4. Kim Lane Scheppele, Does the Posse Comitatus Act Still Exist? (July 15, 2005)

5. Marty Lederman, Cheney v. McCain for the Soul of the Republican Party? (July 23, 2005)

6. Marty Lederman, Judge Roberts on Presidential and Congressional War Powers (Sept. 14, 2005)

7. Jack M. Balkin, Will Bush Pardon Rumsfeld? (Apr. 14, 2006)

8. Sandy Levinson, Death Squads (May 9, 2006)

9. Marty Lederman, So, What About the Merits?: Was the Search of Rep. Jefferson's Chambers Lawful? (May 27, 2006)

10. Sandy Levinson, Clinton impeachment revisited yet again (July 10, 2006)

11. Scott Horton, The Letter [on Leo Strauss] (July 16, 2006)

12. Sandy Levinson, Legal Realism, the Court, and the Press (Aug. 18, 2006)

13. Sandy Levinson, Legal Realism and the Press (II) (Aug. 19, 2006)

14. Brian Tamanaha, Dicey Versus Posner On Ordinary Courts (Aug. 22, 2006)

15. Jack M. Balkin, Online Legal Scholarship: The Medium and the Message [in Yale Law Journal Pocket Part] (Sept. 6, 2006)

16. Marty Lederman, Ariel Dorfman on Complicity (Sept. 24, 2006)

17. Sandy Levinson, How Language Works (Sept. 24, 2006)

18. Scott Horton, An American Sentenced to Death in Iraq (Oct. 14, 2006)

19. Scott Horton, Carl Schmitt, the Dolchstoßlegende and the Law of Armed Conflict (Oct. 21, 2006)

20. Scott Horton, To the Memory of Alyssa Peterson (Nov. 4, 2006)

21. Scott Horton, Two Texts: An Election Eve Meditation (Nov. 5, 2006)

22. Scott Horton, In the Penal Colony (prepared remarks for the Nov. 17, 2006, meeting of the Club de Madrid, Berlin, Germany) (Nov. 17, 2006)

23. Sandy Levinson, This Just In (And Why We Should be Very Afraid) (Nov. 19, 2006)

Posts by Guest Bloggers

1. Torture and the Iraq Constitution (June 24, 2004) (Cass Sunstein)

2. Hamdan Again (Oct. 27, 2005) (Oona Hathaway)

3. Hamdan Redux (Nov. 3, 2005) (Oona Hathaway)

4. The Basic Case Against Alito (Jan. 9, 2006) (Robert W. Gordon)

5. False Confessions Without Torture (May 3, 2006) (Ian Ayres)

6. The NSA and Hamdan (July 8, 2006) (Cass Sunstein)

7. Cass Sunstein Replies (July 9, 2006) (Cass Sunstein)

8. Representative Harman on the Specter Bill (July 14, 2006) (Cong. Jane Harman)

9. Larry Tribe on the ABA Signing Statements Report (Aug. 6, 2006) (Laurence Tribe)

10. The Bloggerati Response to Judge Taylor's Ruling in the NSA Case (Aug. 19, 2006) (Laurence Tribe)

11. Why The Specter Bill Won't Let Courts Decide the Legality of the NSA Program (Sept. 15, 2006) (David Barron)

12. Thucydides on Democratic Imperialism (Sept. 27, 2006) (Alan Gilbert)

13. Suspending Habeas Corpus at Guantánamo and Beyond (Oct. 4, 2006) (Jonathan Hafetz)

Perspectives on Campus Free Speech

Mark Graber

The most recent edition of Perspectives on Politics has an excellent roundtable on Donald Downs's book, RESTORING FREE SPEECH AND LIBERTY ON CAMPUS. Downs, who originally had thought certain forms of hate speech ought to be banned (see his important work, NAZIS IN SKOKIE), later become a leading opponent of campus restrictions on hate speech. RESTORING FREE SPEECH explains the reasons for his conversion and documents the debates over restrictions at Wisconsin and other universities. While general agreement exists among the participants in the roundtable that campus restrictions, particularly as applied by administrators, were either ineffective or inappropriate, serious debate takes place on other matters. Nancy Hirschmann has a nice short piece suggesting that Professor Downs may have underestimated the extent to which minority speech is still effectively silenced on most campuses, Jeremy Rabkin provides reasons for thinking the system of free expression on campus is both healthier and sicker than commonly thought, and Geoffrey Stone raises some legal issues. Given that all three take significant issue with Downs, the one weakness in presentation is that he does not get a chance to reply.

Several thoughts inspired by the pieces. The first is that at least I seem to be witnessing a general silencing in my classes. When I started as a teaching assistant 25 years ago, I had to work hard containing the affirmative action discussion and work harder to get anyone to talk about the dormant commerce clause. Now I find more and more students willing to talk about the dormant commerce clause, which is safe (no one was ever accused of being insensitive or militant for comments on the state market exception), but students of all persuasions, liberal, conservative, socialist, libertarian, or whatever, are very quiet on hot button issues. I do not think this is simply a consequence of political correctness on the left or silencing on the right (though no doubt both in different degrees are present). Rather, I have a sense that the students have stopped trying to persuade each other on these matters. Too bad.

The other thoughts concern the notorious "water buffalo" incident at Penn. As presented in the media, the kid was suspended for yelling a generic Hebrew insult (of the sort "may all your teeth but one fall out and may you have a toothache") at an African-American sorority that was having a loud party late at night. The Hirschmann piece, however, provides much evidence suggesting that, in context, the insult was clearly racial and that the student probably understood this. Given the context, I think a very strong apology at the least was clearly owed. On the other hand, while agreeing that campuses should not tolerate racist insults, I've often thought that the incident also demonstrates how college campuses routinely tolerate uncivil behavior. College students who are fond of sleeping at reasonable hours and, often, are required to live in the dorms typically get no support when they complain about loud music blaring every weekend night and sometimes every night. In this sense, I suspect, mutal apologies were owed in the "water buffalo" case. I do think we need to find better ways of talking about our differences and different opinions on campus, but those differences are not simply racial and civility means more than refraining from certain kinds of insults.

Tuesday, December 19, 2006

The Wizard of Oz--Did You Know?

Brian Tamanaha

Every now and then I read something that comes as a complete surprise. You might have the same reaction to the following passage from Jack Weatherford's The History of Money (1997), which comes out of his discussion of the late nineteenth century debate over adding silver to the gold monetary standard:

The most memorable work of literature to come from the debate over gold and silver in the United States was The Wonderful Wizard of Oz, published in 1900, by journalist L. Frank Baum, who greatly distrusted the power of the city financiers and who supported a bimetallic dollar based on both gold and silver. Taking great literary license, he summarized and satirized the monetary debate and history of the era through a charming story about a naive but good Kansas farm girl named Dorothy, who represented the average rural American citizen. Baum seems to have based her character on the Populist orator Leslie Kelsey, nicknamed "the Kansas Tornado."

After the cyclone violently rips Dorothy and her dog out of Kansas and drops them in the East, Dorothy sets out on the gold road to fairyland, which Baum calls Oz, where the wicked witches and wizards of banking operate. Along the way she meets the Scarecrow, who represents the American farmer; the Tin Woodman, who represents the American factory worker; and the Cowardly Lion, who represents William Jennings Bryan. The party's march on Oz is a re-creation of the 1894 march of Coxey's Army, a group of unemployed men led by 'General' Jacob S. Coxey to demand another public issue of $500 million greenbacks and more work for common people.

Marcus Hanna, the power behind the Republican party and the McKinley administration, was the wizard controlling the mechanisms of finance in the Emerald City. He was the wizard of the Gold Ounce--abbreviated, of course, to Wizard of Oz--and the Munchkins were the simpleminded people of the East who did not understand how the wizard and his fellow financiers pulled the levers and strings that controlled the money, the economy, and the government.

In the Emerald City ruled by the Wizard of Oz, the people were required to wear green-colored glasses attached by a gold buckle. Beyond the city, the Wicked Witch of the West had enslaved the Yellow Winkies, a reference to the imperialist aims of the Republican administration, which had captured the Philippines from Spain and refused to grant them independence.

In the end, all the good American citizens had to do was expose the wizard and his witches for the frauds they were, and all would be well in the bimetal monetary world of silver and gold. In the process, the farmer Scarecrow found out how intelligent he was, the lion found his courage, and the working Tin Man received a new source of strength in a bimetallic tool--a golden ax with a blade of silver--and he would never rust again as long as he had his silver oil can encrusted with gold and jewels.

I'm sure others know about this, and maybe I'm exposing my particular ignorance, but I had no idea that The Wizard of Oz was a political allegory. What makes this discovery especially jolting, for me at least, is that its meaning at the time--when many people would have recognized Baum's allusions--was so radically different from its taken-for-granted meaning today.

I hesitate to sully a discovery that is fascinating for its own sake, but I will use this example to quickly make a serious (albeit tangential) point. The original meaning theory of constitutional interpretation has prominent contemporary advocates--including, famously, Justice Scalia--who point to solid political theory arguments in support. But we must be mindful of the elusiveness and haze that envelops original meanings. Unless we turn constitutional interpretation over to trained historians with ample resources and time (and even then there will be problems), our assumptions about original meaning will be precarious.

Government backs away from unconstitutional use of subpoena power


Yesterday the government backed away from its attempt to use the subpoena power as a prior restraint to force the ACLU to hand over all copies of a secret document. Not only that, the government declassified the document itself. Here is the judge's order noting the government's change of mind, and here (gasp!) is the secret document whose disclosure the government insisted was so important that it had to abuse the investigative powers of the grand jury.

As you will see, the document is nothing other than an memo about when the government would permit photographs of prisoners of war and detainees in the Iraqi Theater of Operations. Not only is this document not crucial to national security, it probably never should have been classified at all.

And yet the government insisted that it didn't snap up every copy of this memo, something terrible would happen to the United States.

This episode aptly demonstrates why claims that we must surrender our freedoms following 9/11 and the War on Terror must be taken with an enormous grain of salt. It's very easy for the government to make these claims, and, as this case shows, it is likely to make them when they are completely bogus. The reasons have to do less with the venality of specific individuals than with the nature of bureacracies, which are naturally allergic to oversight, and which usually seek to maxmize their authority and their lack of accountability.

Once we let our government officials assert emergency as the justification for limiting our rights, they will become addicted to the gesture, and will use the language of emergency and national security to justify more and more things. First they will use the idea to cover up potential political embarassments. Then, as this case demonstrates, they will start to use the gesture reflexively, out of habit, and for no good reason. What the government tired to do in this case-- perform an end run around the Pentagon Papers case for the sake of an unimportant document like this one-- should outrage every American who believes in freedom of speech.

The only way to keep government officials from this particular addiction is to call them out when they try to slip into bad old habits. Hence the old saying that eternal vigillance is the price of liberty.

In Giving Up Our Rights, We'd Lose the War


[This essay was written for the first anniversary of the 9/11 attacks, and published in the New Orleans Times-Picayune on September 11, 2002. Given the story just blogged about the government's misuse of the supoena power to crush First Amendment rights, it seems entirely appropriate to republish the essay now]

* * * * * * *

Whenever our country faces new threats, changes in constitutional structure soon follow. That was true during both World War II and the Cold War. But these changes do not require us to give up our civil liberties. Quite the contrary: Although World War II began with the internment of Japanese-Americans, our experience of fighting a racist Nazi regime eventually led President Harry S. Truman to desegregate the Armed Forces. The Cold War began with McCarthyite hysteria; yet the need to distinguish ourselves from communist dictatorships eventually led to Brown v. Board of Education and a great flowering of civil liberties. Repeatedly Americans have discovered that we respond best to new dangers when we remain true to our deepest values.

Today many argue that the War on Terrorism requires Americans to surrender their civil rights and restructure our constitutional system to give the President ever greater power. But the lesson of history is precisely the opposite. Poised on the brink of war, with an administration altogether too sure of itself, we need democratic accountability and constitutional safeguards more than ever.

Well before September 11th the Bush Administration sought to operate without interference or consultation and to disclose as little information as possible. Its refusal to reveal who met with Vice President Dick Cheney when the administration was formulating its energy policies is only the most well-known example. The administration's approach to the press has become increasingly Orwellian, cloaked in euphemisms and newspeak, routinely describing its positions as their opposites and blatantly denying contradictions and shifts in government policy. Secrecy has been its watchword; bullying its strategy of choice.

The events of September 11th only confirmed the administration's worst instincts about how to govern the nation. Domestically, it rounded up hundreds of immigrants while refusing to release their names to the public. It announced the creation of secret military tribunals with no right of appeal to the judiciary. It detained American citizens in military prisons without the right to consult an attorney or seek judicial review. It ordered a wholesale closure of immigration hearings to the public, barring not only the press but family members. It repeatedly sought to make as much new law as possible without consulting Congress, and it repeatedly insisted before the courts that it had unreviewable power to do whatever it wanted to prosecute the War on Terrorism. In foreign policy it has announced its determination to attack another country preemptively in violation of international law, whether or not Congress gives authorization, and whether or not our allies support us. Only after weeks of protest from congressmen and former government officials did the President grudgingly announce that he would seek Congressional approval for an invasion of Iraq. Even so, administration officials have continued to promote the idea that the United States should wield its military power early, often and unilaterally to secure its interests around the world.

The Bush Administration's policies are not simply unwise or undiplomatic. They also undermine constitutional government. Open government is crucial to a free society; it keeps government officials honest and deters them from making bad decisions and covering up their mistakes. Democracy presumes that government officials are accountable to the people, but accountability becomes impossible if the people can't find out what the government is doing in their name. Separation of powers lets the different branches of government check each other's errors and enthusiasms, but it cannot work if the executive branch insists that it will do whatever it wants anyway. The rule of law prevents government officials from arbitrary action, but it means nothing if the administration can flout international agreements, round up citizens and refuse them access to the courts.

The War on Terrorism is a war to defend our country's way of life. That way of life includes a commitment to constitutional checks and balances, individual liberty, democratic accountability, open government and the rule of law. It would be ironic indeed if in our zeal to preserve our way of life we destroyed it.